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Mark Goodale, University of Lausanne

The intellectual history of the anthropology of law reveals a domain of research, theory, and participatory action that has often found itself at the leading edge of debates over the foundations of social control and resistance, the relationship between law and different forms of governance, the role of law in legitimating ideology, the capacity of law to facilitate movements for social change, and the limitations of law as a site for the resolution of protracted social conflicts, among many others.[1] Yet what runs as a common epistemological thread throughout the full sweep of this rich intellectual legacy—from Maine’s study of ancient law to Merry’s multi-sited ethnography of the global CEDAW monitoring system, from Schapera’s programmatic survey of Tswana law and custom to Darian-Smith’s research on English legal identity in a changing Europe—is the reframing of law away from its apparent institutional and normative isolation toward a theoretical vision of the legal as a dominant mode through which society reproduces itself in terms of always-contested “vital motifs of cultural identity.” But, to make this claim about a uniquely anthropological orientation to law is not the same as to say that the anthropology of law is simply the study of law and society in the key of ethnography, or that it is the comparative version of what has more recently been called “empirical legal studies.”

Rather, the anthropology of law has represented one of the only systematic attempts over the longue durée to unpeel the layers of law from the inside out; to unfold law’s charts on the table of ethnographic scrutiny and examine its topographies and distortions; and to study law as a moral register that is not, as Aristotle claimed, free from passion, but instead infused with will, desire, madness, and the indelible traces of human suffering. In short, the anthropology of law is a particular optic, a lens through which one might view the hold that law has for people, to paraphrase Malinowski. In viewing the development of this optic historically, like social, political, and economic relations more generally, the warp and woof of law was deeply affected by the openings and closures of the liminal moment of the post-Cold War, particularly the emergence and diffusion of international and transnational legal orders. As the work of my colleagues on this panel amply demonstrate, anthropologists of law responded to these broader realignments with methodological creativity and analytical rigor.

The liminal period of the post-Cold War during which an arguably new and regrounded anthropology of law could emerge eventually ended, as all periods of liminality must. If the “interstructural character of the liminal” opens up the possibility for reordering social hierarchies and reconfiguring lines of power (Turner 1967: 99), it also anticipates what comes after, in which what is new is always, crucially, made in part from what was old. Indeed, a cynical—or, perhaps, materialist—reading of Turner’s theory of liminality would say that historical periods of creativity and apparently limitless possibility merely serve to obscure the very deepest faultlines by draping them in the cloak of transformation. As Turner (1967: 99) explained, the “reformulation of old elements in new patterns” was the eventual outcome of periods of transition in which new institutions and cultural logics were being forged.

The trajectory of the new anthropology of law roughly tracked the opening and gradual closing of the historical period in which law and the legal became hegemonic, from the rise of “juristocracy” to the “juridification of politics,” from the coalescence of global “cultures of legality” to “revolution by constitution.” What marked these signs of law’s apotheosis was the presence of legal institutions, philosophies, and procedural logics across a wide and unprecedented range of processes, from the transition to a post-apartheid society in South Africa to debates over the use of torture in the so-called War on Terror, from the resolution of a Maoist insurgency in Nepal to the emergence of a global regime to monitor and regulate “all forms” of discrimination against women.

As the years of the post-Cold War stretched on, the limits to these “novel appropriations of the law in the pursuit of political and social change” became increasingly clear. The “reformulation of old elements in new patterns” marked the end of law’s term of service as the handmaiden of triumphal challenges to the nation-state, global ideologies of collective belonging, and dreams of more inclusive social communities based on equality, tolerance, and appeals to the concept of universal human dignity. The expansion of economic inequality, both at a global level and within countries; the devolution of human rights revolutions into ethnic and religious conflicts; the failure of international legal regimes to deter or prevent the naked annexation of countries by more powerful neighbors; the misappropriation of categories of collective identity to make dubious claims of discrimination, legal exclusion, and “micro-aggression”; and the undermining of a precarious system of international criminal justice by postcolonial plutocrats masquerading as postcolonial martyrs—all of these, and more, were signposts pointing to the fact that law had been “cut down to size,” as Harri Englund (2013) has put it.

Anthropologists of law are thus confronted with a changing landscape of law once again, a landscape on which the cosmopolitan legal imaginaries forged in the early years after the end of the Cold War coexist with, or, in some cases, are overwhelmed by, those oriented to radically different logics—logics of resurgent nationalism, of the invisible hand of the free market, and of death-cult theology. This is the broader historical context against which anthropologists of law going forward must conduct research and continue to track the changing ways and means of law in a post-utopian world.

To give a sense of what it might mean to do legal anthropological research in this version of the future, I want to make two suggestions, suggestions which I hope to pick up on in my own future work. First, scholars should give a fresh look to justice as an organizing rubric for research, theorizing, and engaged scholarship. I continue to be inspired by Nancy Fraser’s synthetic framework, although I believe that her attempt to embed the redistributive/recognition dichotomy within a broader conception of representation remains very much prescriptive even though it was meant (in 2009) to be a response to changing historical conditions in what she calls a “globalizing world.” But I think it is impossible to look around at the end of 2016 and argue that we are entering—as Fraser does—a post-Keynesian and post-Westphalian period. If anything, it seems that we now live in what might be called a “differentially globalizing” world, one in which the post-2008 global economic system continues to rapidly globalize, protected by the careful oversight of the G-20, which has met every year since the collapse of Lehman Brothers, while at the same time as forms of often violent de-globalization take root at a cultural level and get legitimated at a political level, as Brexit and the recent election of Donald Trump indicate.

Nevertheless, the interplay between problems of redistribution, recognition, and representation seems to me to be a fruitful way to make sense of how conflicts emerge in light of the increasing influence of state-capital resource assemblages, land-grabbing and new forms of transitional capital risk management, and the political-economic costs of what Saskia Sassen (2014) has described as “the savage sorting,” on the one hand, and, on the other, the signs of the cosmopolitan normative apocalypse that seem to be all around us (to invoke Stephen Hopgood’s endtimes imaginary), including the democratic triumph of ethnonationalism from Washington, DC, to Delhi, the so-called backlash against human rights taking shape within the centers of postwar, particularly European, liberal governance, and the fracturing of the fragile system of international criminal law, in which major African countries withdraw from the Rome Statute, a development that Kenneth Roth (2014) has described as “devastating for international justice.”

A second suggestion for the anthropology of law would be to take our diffuse accounts of law and society into these future research contexts. In a recent chapter on human rights activism and torture in Vietnam, Ken MacLean (n.d.) argues that we must pay closer attention to what he calls the “(non-) adoption of human rights discourse,” that is, the refusal to deploy the language of human rights by activists when they might otherwise be expected to do so. If at least some of us have spent the last decades trying to understand the practice of human rights and other forms of cosmopolitan legality, we must now attend to what might be thought of as the non-practice of human rights, whether in the form of legal claims-making that is based on various kinds of exclusionary norms, or in the formation of social movements organized around non-humanist conceptions of dignity, or even in the rise of violent theologies that are partly justified through a jurisprudence of spiritual cleansing. We can’t now argue that this is not law just because it takes place among the ruins of what Kofi Annan (2000) could describe as late as 2000 as the “age of human rights.” Rather, we should stick to our tools, our concepts and categories, and confront these developments ethnographically and theoretically through the tried and true lenses of the semi-autonomous social field, vernacularization, and the nonsynchronic and superimposed spaces of interlegality.

Note

[1] This is adapted from the Introduction to Mark Goodale, Anthropology and Law: A Critical Introduction (New York: NYU Press, 2017).